Galati seeking SCC approval of Nadon costs

Constitutional litigator Rocco Galati is taking the Nadon case back up to the Supreme Court of Canada — this time to challenge his latest smack down by the Federal Court of Appeal.

The Toronto immigration lawyer, famed for launching a constitutional challenge that ultimately led to Federal Court of Appeal Justice Marc Nadon’s Supreme Court appointment being invalidated by the Supreme Court in 2014, is seeking solicitor-client costs of $51,706 (inclusive of tax and disbursements) for his work on the case in Federal Court — i.e. 56 hours at $800 per hour.

The Federal Court refused last year — awarding Galati and the co-appellant Constitutional Rights Centre only $5,000 between them. The centre had requested $16,769, also based on $800 per hour for counsel Paul Slansky of Toronto.

That costs ruling was affirmed Feb. 8 by a clearly miffed Federal Court of Appeal panel, which slammed Galati’s suggestion in argument that if the pair are denied their solicitor-client costs, the federal courts would be, and be seen to be, “in bed” with the government: Galati v. Harper, [2016] FCA 39.

“It sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case,” said Justice Denis Pelletier, in a decision backed by Justices David Stratas and Mary Gleason.

“To be ‘in bed’ with someone is to collude with that person,” he explained. “I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don’t give the applicant its solicitor-client costs. The entire court system, it seems, must be alleged to be actually or potentially acting in bad faith in order to instill public confidence in the fairness and independence of the judiciary. This is reminiscent of the gonzo logic of the Vietnam War era in which entire villages had to be destroyed in order to save them from the enemy. The fact that this argument is made in support of an unjustified monetary claim leads to the question ‘Whose interest is being served here?’ Certainly not the administration of justice’s. This argument deserves to be condemned without reservation.”

The appeal panel went on to slap the appellants with $1,000 in costs. Justice Stratas noted he would have awarded more had the Crown asked.

“[A] constitutional right for lawyers acting as public interest litigants to collect pay and bonuses from the public purse in the amount of $800 an hour?” Justice Stratas queried. “I don’t see that in the text of the Constitution or by necessary implication from it. Nor does the Supreme Court see it,” he said, citing case law. “I also reject the appellants’ submission that some principle sitting invisibly alongside the visible text of our Constitution somehow springs up to entitle them to $800 an hour.”

Justice Stratas also admonished that “the informed, reasonable person viewing the matter realistically and practically would never think that judges are predisposed to the government just because the government pays them and does not pay others. This sort of submission can unfairly affect the legitimacy and public perception of the court. An officer of the court should never make such a submission.”

Galati told The Lawyers Weekly he is seeking leave to appeal to the Supreme Court because the costs ruling raises an important constitutional principle. “I’m flabbergasted by the tenor, and assertions [by the panel], in that decision, such as the fact that the Nadon reference was not a case of public importance but was restricted in interest to certain legal circles,” he said. “The issue was whether or not a citizen who takes a successful constitutional challenge, without any personal benefit, is entitled to costs as a constitutional right. They dealt with issues all around that issue, and engaged in a Louis XIVth Versaillesean rant, but they didn’t deal with that issue.”

Galati and Slansky moved for solicitor-client costs on the basis that “where a private citizen brings a constitutional challenge to legislation and/or executive action, going to the ‘architecture of the Constitution,’ from which he/she derives no personal benefit, per se, and is successful on the constitutional challenge, that he/she is entitled to solicitor-client costs of those proceedings, as to deny those costs constitutes a breach of the constitutional right to a fair and independent judiciary.’’

Galati’s Federal Court challenge to the Nadon appointment was stayed within a month, on consent, after the federal government referred straight to the Supreme Court the same issue about the eligibility of judges of the federal courts for the high court’s Quebec seats. There the government of Quebec, Galati and others won the day, with the Supreme Court’s majority ruling that judges of the Federal Court, Federal Court of Appeal, Tax Court and Court Martial Appeal Court are ineligible, and moreover that the top court’s composition and very existence became “essential’’ to the “Constitution’s architecture” at least by 1949: Reference re Supreme Court Act, ss. 5 and 6, [2014] SCC 21.

On the costs matter, the Federal Court of Appeal agreed with the court below, that there is no established constitutional right to costs. Moreover the appellants did not “succeed” in Federal Court so as to entitle them to costs as their test case was supplanted by the Nadon Reference.

“The fact that their application apparently set in motion a series of events which led to the conclusion which they hoped to achieve in their application does not make them successful litigants,” Justice Pelletier explained. “It may make them successful politically or in the popular press, but that is a different matter. They can only claim costs in relation to the judicial treatment of the joint application [in Federal Court] which, as noted, was dismissed. To hold otherwise would be to create something in the nature of a finder’s fee for constitutional litigation.”

The appeal panel held that the Federal Court also did not err in refusing to exercise its discretionary power to award special costs under Rule 400 of the Federal Courts Rules. “There is no doubt that the issues raised were of significant importance, particularly to the members of the federal courts, but the interpretation of sections 5 and 6 of the [Supreme Court] Act did not have widespread societal impact,” Justice Pelletier wrote. “When the partisan political overlay is stripped away, this was a lawyer’s issue with very limited consequences beyond legal circles. It certainly did not go to the ‘architecture of the Constitution.’ ”

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